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July 13— Although none of the U.S. Supreme Court's criminal law decisions this year drew as
much media attention as the affirmative action and abortion rulings, the court issued
a handful of opinions that will have a big impact on the way attorneys practice criminal
law, according to legal experts who spoke to Bloomberg BNA about the 2015-2016 term.

In a boost to law enforcement, the court continued to chip away at the Fourth Amendment's
exclusionary rule by ruling that police can purge the taint of an illegal stop if
they later stumble across an outstanding warrant that would have justified the stop
in the first place.

On the other hand, the justices issued several pro-defense rulings that included making
federal sentencing more fair and proportional and reining in government overreach
when it comes to charging federal bribery and corruption.

Some court watchers also commented on the significance of what the court didn't do
this term. For example, there was no movement on Justice Stephen G. Breyer's call
last year to re-examine the constitutionality of the death penalty and the docket
was uncharacteristically bereft of habeas corpus cases.

“This was a big criminal year, just not in the way people usually expect,” Laurie
L. Levenson, a former federal prosecutor who is now a professor at Loyola Law School
in Los Angeles, told Bloomberg BNA.

New Limits on Exclusionary Rule

Although this was a “thin year” in terms of numbers for search-and-seizure cases,
Levenson said that
Utah v. Strieff, No. 14–1373, 2016 BL 196028 (U.S. June 20, 2016) stands out as a major development.

In
Strieff, the justices ruled 5-3 that the exclusionary rule doesn't apply when the police
execute an illegal stop of a pedestrian and then search the suspect after running
a warrant check and discovering that the suspect has an outstanding warrant (99 CrL 390, 6/22/16).

In an opinion by Justice Clarence Thomas, the court said that in the absence of “flagrant
police misconduct,” the arresting officer's discovery of the outstanding arrest warrant
“attenuated the connection between the unlawful stop and the evidence seized incident
to arrest.”

“We're seeing the slow and ongoing demise of the exclusionary rule,” Levenson said,
with the court looking more and more to the intent of the officers.

According to Levenson, Justices Elena Kagan and Sonia M. Sotomayor got it right when
they warned in their separate dissents that the court was carving out a new exception
to the exclusionary rule that will only encourage police to execute suspicionless
stops in poorer neighborhoods where a high number of residents will likely have outstanding
warrants.

“The amazing thing is the police here conceded they didn't have reasonable suspicion
to stop—even though that's usually not a very difficult hurdle to clear,” Levenson
said.

“So in my mind this was clearly a test case to see if the state could concede the
error and still not have to apply the exclusionary rule,” she said.

Three-Part Attenuation Test

Opponents of the exclusionary rule were hoping for a broader re-examination of the
rule itself, but said they were happy with the result.

“Criminal trials should be about whether the defendant is guilty, and all reliable
evidence should be considered on that question,” said Kent Scheidegger, the legal
director and general counsel for the
Criminal Justice Legal Foundation.

In his
amicus brief filed on behalf of Utah, Scheidegger urged the court to rule that all exclusion claims
should be forced to show that the Fourth Amendment violation was clear at the time
of the officer's action and that law enforcement acted in “bad faith.”

The court didn't go quite that far, but found the evidence admissible in this case
under the
three-part attenuation test, which includes looking at the temporal proximity between the initially unlawful
stop and the subsequent search, the presence of any intervening circumstances and
“the purpose and flagrancy of the official misconduct.”

Scheidegger also said he agreed with the majority's reference to civil liability as
a deterrent to negligent police misconduct. Complaints about good faith mistakes are
best addressed in ways that don't involve the drastic remedy of suppressing valid
evidence, he said.

Professor Orin Kerr, of George Washington University Law School, Washington, suggested
in comments posted on
Scotusblog that the outcome might've involved a deeper incursion into the exclusionary rule
had Justice Antonin Scalia still been alive.

Scalia, a strong opponent of the exclusionary rule, died just nine days before
Strieff was argued.

Big Sentencing Decisions Retroactive

Several court watchers flagged the court's sentencing decisions this term as being
among the most significant.

“In broad strokes, we're seeing a court that recognizes the drain that incarceration
is placing on the criminal justice system and is looking for opportunities to make
sentencing more fair and proportionate and more rational,”
James E. Felman, of Kynes Markman & Felman, Tampa, Fla., told Bloomberg BNA.

Both Felman and Levenson cited as particularly impactful two decisions this year that
may give retroactive relief to hundreds of federal prisoners whose convictions were
already final.

“Many people thought the court would remain stingy in the area of retroactivity, but
these decisions open new doors for some and give fresh hope to others who are arguing
for the retroactive application of other Supreme Court decisions,” Levenson said.

In
Welch v. United States, No. 15-6418, 2016 BL 120401 (U.S. April 18, 2016) (99 CrL 64, 4/20/16), the court ruled 7-1 that its 2015 decision in
Johnson v. United States, declaring that the catchall definition of “violent felony” in the Armed Career Criminal
Act was too vague to constitutionally justify enhancing a recidivist's sentence, may
be applied retroactively on collateral review. Justice Anthony M. Kennedy wrote for
the majority and Justice Clarence Thomas was the lone dissenter.

The rub for these prisoners, Felman said, is that the deadline for filing expired
on June 26 because federal rules require challenges to be made within one year after
the Supreme Court changes a sentencing provision. The federal public defender's office
in Tampa, Fla., was scrambling trying to identify the potentially eligible cases before
the deadline passed, he said.

In the other retroactivity decision,
Montgomery v. Louisiana, No. 14-280, 2016 BL 18591 (U.S. Jan. 25, 2016) (98 CrL 362, 1/27/16), the court by a 6-3 vote made retroactive its
2012 decision banning mandatory life without parole sentences for juvenile offenders. Justice Kennedy
again wrote for the majority, and Justice Antonin Scalia led the dissenters in one
of the last opinions he wrote before his death.

For a time, the U.S. and Somalia were the only two nations in the world that allowed
juveniles to be sentenced to mandatory life without parole, Felman said. “When you
say it's just us and Somalia, that's not exactly good company.”

“The career-offender-guideline as a whole is one of the worst in terms of its ability
to generate disproportionate sentences,” Felman said. “It's one of the guidelines
that judges depart from most frequently.”

In
Mathis, the court ruled 5-3 that judges must use the “modified categorical approach”
to determine whether a prior crime qualifies as a generic burglary for purposes of
being an ACCA predicate. Because the Iowa burglary statute at issue in the case stated
a variety of ways to commit the crime of burglary but did not require the jury to
make a finding about which way the burglary was committed, it can't be used for ACCA
purposes, Justice Elena Kagan wrote.

“The decision is fairly technical and will make most people's eyes glaze over, but
it will have a real impact on the way courts count prior state convictions for purposes
of federal enhancement,” Levenson said.

Justice Thomas tried to steer his colleagues into a Second Amendment discussion when
he broke his decade-long record of silence during oral argument in
Voisine v. United States, No. 14–10154, 2016 BL 205027 (U.S. June 27, 2016) (99 CrL 447, 6/29/16) and asked about the implications of suspending for life a man's constitutional right
to own a gun because he had been convicted of misdemeanor domestic abuse, but the
court decided the case without directly addressing the Second Amendment issues.

The closest the court came to ruling on gun rights this term was
Caetano v. Massachusetts, No. 14-10078, 2016 BL 85221 (U.S. March 21, 2016) (98 CrL 588, 3/23/16), where the justices vacated a woman's conviction for illegally carrying a stun gun
because it said the state court erred when it ruled that Second Amendment protections
categorically don't apply to weapons invented after the Bill of Rights was written.

In
Molina-Martinez, the court voted unanimously to embrace the view taken by most courts of appeals
and gave prisoners challenging an incorrect guidelines range a break by ruling that
these types of errors can, and often will, meet the “substantial rights” threshold
for purposes of triggering plain-error review.

The court didn't embrace the petitioner's suggestion that there ought to be a presumption
of prejudice when the sentence was based on an erroneous computation of the guideline
range, but it certainly ameliorated the burden on inmates who challenge a guideline
mistake for the first time on appeal, Felman said.

That's not a surprising outcome, Felman said, and it's a fair one.

“The court is basically saying, look, the guidelines can be harsh, so let's not make
it any harder for people to challenge the provisions when they were misapplied,” Levenson
said. It's a narrow holding, but an important one, she added.

Prosecutorial Overreach

Jeremy D. Frey, of Pepper Hamilton LLP, Philadelphia, flagged the decision in
McDonnell v. United States, No. 15-474, 2016 BL 205026 (U.S. June 27, 2016) as one of the top three headliners of the term.

In a unanimous opinion written by Chief Justice John G. Roberts Jr., the court picked
up where it left off in
Skilling v. United States, which limited the honest services law to bribes and kickbacks, and made it clear
that prosecutors can't prove public corruption unless there is a formal exercise of
government power, Frey told Bloomberg BNA.

“Most people on the street would probably think that giving a politician money with
the expectation that they'd get better access to the politician is corrupt, but the
court said that the instructions here were pretty darn vague,” Felman said.

“But those instructions basically made any petty act of dishonesty by a state official
a federal offense and allowed the feds to regulate the ethics of state governments
in a way that can potentially be pretty intrusive,” Felman added.

Levenson agreed. “The justices have been alarmed at how prosecutors have been using
the Hobbs Act,” she said.

Jeffrey T. Green, a partner at Sidley Austin LLP and Co-Director of the Northwestern
University Law School Supreme Court Clinic, said
McDonnell is just the latest decision in which the court has rejected “beach-head” prosecutions
that stretch federal laws beyond their intent.

In a
Scotusblog post he co-authored with National Association of Criminal Defense Lawyers public affairs
director Ivan J. Dominguez, Green said the decision was consistent with the court's
rulings in
Bond v. United States, which rejected the government’s effort to use the Convention on Chemical Weapons
to prosecute a simple assault and
Yates v. United States, which rebuffed the government’s use of a federal obstruction law to prosecute a
fisherman who threw undersized fish overboard.

Capital Punishment:
Calm Before the Storm

Although the court took up quite a few cases touching on capital punishment this term,
court watchers told Bloomberg BNA that none of those decisions yielded anything as
momentous as Justice Breyer's dissent last year in
Glossip v. Gross, No. 14-7955, 2015 BL 206563 (U.S. June 29, 2015) (97 CrL 402, 7/1/15), which contended that the death penalty itself is unfair and unworkable.

“If Justice Breyer's dissent in
Glossip is the gathering storm, then the October 2015 term was the calm before it,” said
Lee Kovarsky, an associate professor of law at the University of Maryland's Francis
King Carey School of Law in Baltimore.

“
Wearry didn't break any new ground on
Brady obligations,” Kovarsky said. “It was just a really bad
Brady violation.”

And the court wasn't exactly breaking new ground when it said the judge in
Williams should've recused himself from hearing an inmate's habeas petition because the judge
was involved in the decision to pursue capital charges against the defendant back
when he was a prosecutor.

Sixth Amendment Spillover

The closest the court came to delivering a death penalty “blockbuster” was
Hurst v. Florida, No. 14-7505, 2016 BL 7258 (U.S. Jan. 12, 2016) (98 CrL 333, 1/20/16), Kovarsky said. “But that was an outgrowth of noncapital jurisprudence involving
the
Sixth Amendment right to jury determinations,” he said.

In
Apprendi v. New Jersey, 530 U.S. 466 (2000), the court ruled that any fact that exposes a defendant to a punishment greater than
that authorized by the guilty verdict itself is an element that must be found by a
jury. That decision heralded a “Sixth Amendment revolution that's now spilled over
into capital punishment and was the foundation for the court's holding in
Hurst,”
Kovarsky said.

In
Hurst, the court ruled 8-1 that Florida's capital-sentencing scheme was unconstitutional
because the procedure specifically conditioned a capital defendant's eligibility for
the death penalty on findings made by the trial court instead of the jury. Justice
Sotomayor wrote the majority opinion and Justice Samuel A. Alito Jr. was the lone
dissenter.

Although
Hurst is significant for Alabama—which also has a sentencing scheme that involves judicial
override—the case says more about the court's view of the Sixth Amendment than anything
else, Kovarsky told Bloomberg BNA.

The biggest takeaway from
Hurst is that “[t]his court is serious about its
Apprendi jurisprudence, which holds that anything that increases your sentence eligibility
has to be found by jury beyond a reasonable doubt,” Kovarsky said.

A
draft of the 2016 Democratic Party platform is calling for the abolition of the death penalty.
The Republican platform, on the other hand, condemns what it says is the Supreme Court's
“erosion” of the people's right to enact capital punishment and contends that the
constitutionality of the death penalty “
is firmly settled by its explicit mention in the Fifth Amendment.”

Forfeiture and the Sixth Amendment

Although there were no big-ticket Fifth Amendment right-to-counsel decisions this
term, Frey told Bloomberg BNA that
Luis v. United States, No. 14-419, 2016 BL 192369 (U.S. March 30, 2016) was significant because it strengthened the Sixth Amendment right to hire counsel
of choice and placed limits on the government's ability to freeze a suspect's untainted
assets.

Federal prosecutors had argued that a defendant's right to pick a private lawyer must
give way to the government's strong interest in making sure that some money will later
be available to cover statutory penalties and restitution if a defendant is ultimately
convicted.

But the five-member majority, in an opinion by Justice Stephen G. Breyer, said this
interest can't trump a defendant's compelling Sixth Amendment right to hire counsel
of choice with money that is presumptively “innocent.”

When the court last addressed these types of issues in
United States v. Kaley, it ruled there is no constitutional right to revisit a grand jury's finding of probable
cause in a pretrial hearing challenging the restraint of potentially forfeitable assets
needed to hire counsel of choice. This time around, Frey said, the court used the
balancing approach to side with the cash-strapped defendant.

“The promise of
Kaley that there are particular constitutional limits on pretrial asset freezes respecting
assets without the requisite connection to the crime played out in
Luis where Sixth Amendment principles were applied to cabin pre-conviction asset restraints
of untainted property needed for counsel,” he said.

Slow Year for Habeas Decisions

This was a pretty slow year for federal habeas cases, Jonathan M. Kirshbaum, who is
with the noncapital habeas unit at the Federal Public Defender's Office in Las Vegas,
told Bloomberg BNA.

There were only four decisions this term, and three of those were summary reversals,
he said.

“Without actually looking at numbers, I would guess that this is the lowest number
of argued federal habeas cases during the Roberts era, which until now has been a
very active one for federal habeas cases,” Kirshbaum said.

Of the decided cases, he continued,
White v. Wheeler, No. 14-1372, 2015 BL 408513 (U.S., Dec. 14, 2015) (98 CrL 242, 12/16/15) is really the only consequential one because it continued the Roberts court's practice
of interpreting the standard of review under the Antiterrorism and Effective Death
Penalty Act in the narrowest terms possible.

The AEDPA,
28 U.S.C. § 2254(d), generally bars habeas relief arising from legal claims that were adjudicated on
the merits in the state courts unless the state court decision was “contrary to, or
an unreasonable application of” federal law clearly established in the holdings of
the U.S. Supreme Court.

According to Kirshbaum, the Roberts court has practically read the “unreasonable application”
clause out of the statute and focused exclusively on the “contrary to” language.

To contact the reporter on this story: Lance J. Rogers in Washington at
lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at
rlarson@bna.com

For More Information

Levenson, Kirshbaum, Felman and Frey are members of the Criminal Law Reporter's advisory
board.

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